Pacific Bank v. Hannah

• Decision Date: 03 May 1898
• Docket Number: 400.
• Citation: 90 F. 72
• Parties: PACIFIC BANK v. HANNAH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

90 F. 72

PACIFIC BANK v. HANNAH et al.

No. 400.

United States Court of Appeals, Ninth Circuit.

May 3, 1898

This is an action in ejectment, brought by the Pacific Bank plaintiff in error here, for about four acres of land situated in the county of Pierce, state of Washington. The complaint alleged ownership in fee, and a right to the possession of the land, and that the defendants were in unlawful possession thereof. The defendants pleaded a general denial, and set up that the county of Pierce, state of Washington, was the owner of said land, and that they were in possession by consent of said Pierce county. The evidence introduced on the part of the plaintiff was entirely documentary. The plaintiff deraigns its title as follows: In February, 1870, a tract of 60 acres of land, described as the S.W. 1/4 of the N.W. 1/4, and the W. 1/2 of the S.E. 1/4 of the N.W. 1/4, of section 5, township 20 N., of range 3 E., of Willamette meridian, in the county of Pierce, then territory now state, of Washington, was conveyed by Louis C. Fuller and Clinton P. Ferry, and their respective wives, who were the owners in fee simple thereof, to the Workingmen's Joint-Stock Association, a corporation organized under the laws of the state of Oregon, and having its principal office at Portland, in said state. At that time, and on the 10th of February, 1871, following, the stockholders, and the only stockholders, of this corporation were the following: John Donaldson, Philip Francis, Charles Gilbert, James H. Givens Charles Howard, John Huntington, George Washington, George Thomas, George Luviney, William Brown, Mary H. Carr, Edward S. Simmons, George P. Riley, and Anna Rodney, and each was the owner and holder of 30/464 of all the capital stock of the corporation, except George Luviney, who was the owner and holder of 65/464 of said capital stock, and William Brown who was the owner and holder of 39/464 of said capital stock. On the 10th day of February, 1871, a question having arisen as to the power of the corporation to take and hold the title to said real property, it was decided by the officers and managers of the same that the said land should be conveyed to the said stockholders individually, as tenants in common of their interests therein, in proportion to the amount of capital stock owned and held by each; and accordingly, on said day, the corporation joined with said Louis C. Fuller and Clinton P. Ferry, and their respective wives, and duly made, executed, and delivered to said stockholders hereinbefore mentioned a quitclaim deed to said real estate, in the proportions represented by the stock held by them in the corporation, to be held by them as tenants in common. Amoung these stockholders and tenants in common was one James H. Givens, whose interest was stated, in the deed, to be 30/464, and whose interest represents the land in controversy in this action, amounting to about four acres. On September 5, 1871, 11 of these tenants in common, among whom was James H. Givens, joined in a power of attorney in favor of John W. Matthews, who was constituted and appointed 'our true and lawful attorney for us, and in our name and stead, to grant, bargain, sell, convey, alien, remise, release, quitclaim, assign, or transfer all such lands,' etc., 'and for all the powers aforesaid for us and in our names to make, execute, acknowledge, and deliver all necessary deed,' &c. The names of the remaining three tenants in common were affixed by other parties, but no previous authority to do so was shown. The purpose of this power of attorney, it appears, was to effect a partition of this 60-acre tract; and Matthews accordingly, on September 9, 1871, attempting and assuming to act under said instrument in writing, executed to said stockholders hereinbefore mentioned a deed signed by himself as attorney in fact, conveying to each a portion of the 60 acres represented by his or her interest in said corporation. But it seems that the initial corner of the description of the land attempted to be conveyed was incorrectly stated in said deeds, and furthermore the deeds were signed by the name of John W. Matthews, and not by the names of any of said alleged grantors, and were otherwise incorrect and void. See opinion of the court below in the case of McDonald v. Donaldson, relating to this same tract of land, 47 F. 765. Subsequently, and about February 14, 1873, James H. Givens died intestate, leaving Mary A. Givens, his wife, surviving him. On March 24, 1873, Matthews, still assuming to act under the authority of said power of attorney and without any additional authority, executed, acknowledged, and delivered a second set of deeds to each of said stockholders (excepting James H. Givens), which correctly stated the section in which the said tracts, so partitioned, were situated, and the true initial corner of the description in each, and to which he signed the names of several of the stockholders as grantors therein. Matthews deeded the tract in controversy in this case to Givens' widow, Mary A. Givens. As stated, Givens had died in the month of February previous, intestate, without leaving any heirs. It was, however, assumed at the time that, under the laws of the territory, now state, of Washington, his widow was his heir at law. It was upon this assumption that the deed of the tract of land to which Givens would have been entitled, had he lived, was conveyed by Matthews to Mary A. Givens, his widow. Subsequently, on October 17, 1888, Mary A. Givens, describing herself as the 'widow of James H. Givens,' executed a quitclaim deed of the entire 60-acre tract to Fran V. McDonald. In the year 1891, McDonald instituted a suit in equity in the United States circuit court for the district of Washington, Western division, against those of the original tenants in common who still retained their interests and against those persons who claimed title to any part of the premises by deed from any of the original tenants in common. The object of the suit was to obtain a decree defining the interests of the several parties, remove the cloud upon the title, and partition the property among the owners, so as to give to each his portion thereof in severalty. The importance of just such a suit to disentangle the title to this entire 60-acre tract from the complications which the careless and misadvised acts of the parties had caused, is very forcibly stated by the learned judge of the court below in his opinion in that case. McDonald v. Donaldson, supra. It was held that the land had not been legally partitioned, and that the only solution of the legal difficulties and perplexities of the situation was for the court to partition the land itself, according to the fairest plan which the court, acting upon certain equitable principles, could devise. This was accordingly done. In the findings of fact in that case, the court found 'that on the 23d day of March, 1873, the said James H. Givens died intestate, leaving Mary Givens his widow and only heir at law,' and awarded the land in controversy here to McDonald, as the grantee of Mary Givens. Subsequently, McDonald brought suit against Dolphus B. Hannah and Kate E. Hannah, his wife, the present defendants in this case, in the circuit court of the United States for the district of Washington, Western division, to recover possession of the land involved in the case at bar. McDonald, the grantor of the present plaintiff in the case at bar, pleaded, in that action, to establish his title to the land and right to have Hannah et ux. dispossessed, the judgment and decree rendered in the case of McDonald v. Donaldson, 47 F. 765. But the court held that, while such decree and judgment were admissible in evidence in favor of the plaintiff's title, it was not conclusive upon the defendants, they having been strangers to the suit in which such judgment and decree were rendered; and the court further held that, upon the evidence presented and the showing made in that case, the title held by McDonald to the land in controversy in this case was void and of no effect; that Mary A. Givens, the widow of James H. Givens, never had the legal or any title to the land which she could convey to McDonald; that she was not, under the laws of the territory, now state, of Washington, the heir at law of James H. Givens; that, upon the latter's death, the only right she acquired in the land in controversy was that of dower, and nothing more; that the land had never been awarded to her in any proceeding according to the statute for assignment of dower. Judgment was accordingly rendered for the defendants. 51 F. 73. Subsequently, on February 11, 1896, McDonald conveyed the land in controversy to the Pacific Bank, the plaintiff in the court below and the plaintiff in error in this court. The case was tried before the court below, the parties having, by written stipulation filed, waived a jury. Judgment was rendered in favor of the defendants, and the court made the following findings of facts and conclusions of law:

'First. That plaintiff is a banking corporation organized and existing under the laws of the state of California, and authorized to hold real estate in the state of Washington, and the defendants are citizens and residents of the state of Washington.

'Second. That in the year 1840 one James H. Givens intermarried with one Mary A. Peck at New Bedford, in the state of Massachusetts, and the said parties never resided in the late territory, now state, of Washington.

'Third. That on the 14th day of February, 1873, the said James H. Givens died intestate at Portland, in the county of Multnomah, state of Oregon, leaving surviving him his widow, the said Mary A. Givens, but no issue or heir at law.

'Fourth. That at the time of his death the said James H. Givens

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